Youth Court Decisions How to Use Full list of key titles CYPFA section Date

R v Accused (1998) 15 CRNZ 481; R v N [1998] 2 NZLR 272 (CA)

Case summary provided by BROOKERS

Name: R v Accused
Reported: (1998) 15 CRNZ 481; R v N [1998] 2 NZLR 272
File number: CA499/97
Date: 21 April 1998
Court: Court of Appeal
Location: Wellington
Judge: Richardson P, Henry, Thomas, Blanchard, Tipping JJ
Charge: Sexual Violation - Rape; Sexual Violation - Unlawful Sexual Connection; Indecent Assault
CYPFA:
Key Title: Sentencing in the adult Courts - Sexual Violation - Rape; Sentencing in the adult Courts - other; Reports - psychological; Reports - psychiatric

LEXISNEXIS Summary:

Sentence - Sexual violation - Youth offender - Appeal by Solicitor-General - Sentence of 2 years' imprisonment suspended for 2 years - Whether appellant's offending too serious for non-custodial sentence - Opportunities for treatment and counselling for respondent if in prison - Criminal Justice Act 1985, ss 5, 128B(2).

Sexual violation - Sentence - Youth offender - Appeal by Solicitor-General - Sentence of 2 years' imprisonment suspended for 2 years - Whether appellant's offending too serious for non-custodial sentence - Opportunities for treatment and counselling for respondent if in prison - Criminal Justice Act 1985, ss 5, 128B(2).

The Solicitor-General sought leave to appeal against the sentence imposed on the respondent in the High Court. The respondent pleaded guilty to seven charges involving three complainants: one of sexual violation by rape, four of sexual violation by unlawful sexual connection, and two of indecent assault.

The respondent was sentenced to 2 years' imprisonment suspended for the maximum period of 2 years under s 21A Criminal Justice Act 1985. The respondent was also sentenced to supervision for a period of 2 years on the condition that he attend the SAFE Adolescent Sexual Offenders Treatment Programme or another programme recommended by the Probation Officer. Supervision was to be served concurrently with the suspended term of imprisonment. The Solicitor-General's argument was that the respondent's offending was simply too serious for a non-custodial sentence to be contemplated, and that while the respondent was entitled to a substantial discount on account of his age, the shortest sentence which could have been imposed in the circumstances was one of 4 years' imprisonment.

The respondent was 14 years 7 months of age at the time the offending began and 15 years 6 months old at the end of the period covered in the charges. The respondent sexually abused three complainants, an 8-year-old boy named A, a 5-year-old girl named L, and a 3-year-old infant named H, when he was residing in a foster home. When spoken to by the police, the respondent admitted the offending. As at that date, he had already received private counselling and then entered the SAFE programme. His explanation for his actions was that he had been sexually abused by his older brother when he was younger. Between the disclosure of the offending and pleading guilty when he was arraigned, the respondent continued to attend the SAFE programme.[(1998) 15 CRNZ 481,482]

The respondent was first referred to a Mr L, a clinical psychologist, working for the SAFE Adolescent Sex Offender Programme. Mr L completed two reports for the Court relating to the respondent's progress and treatment and his needs for future therapy. At the time of the first report, the respondent had only been receiving treatment for a short time. In his conclusion, Mr L confirmed that the respondent had made good progress in treatment up to that date and appeared genuinely motivated to change. He would need to remain in treatment at the SAFE programme for up to 2 years. The second report was written about 7 months later. Although still in the initial phases of treatment, the respondent had been making good progress. He made clear disclosures of his sexual offending and had accepted full responsibility for it. The respondent needed to continue in the SAFE programme so he received specialist counselling to address his sexually abusive behaviour. If he continued in the programme, his prognosis was positive.

Another clinical psychologist provided three reports. He expressed the view that, should the respondent receive a custodial sentence, he would not receive the appropriate treatment programme that was specifically designed to meet his development and social needs. The respondent had made good progress and if he continued treatment, the likelihood of reoffending was low.

Held, (1) the sentence of imprisonment of only 2 years was not open to the sentencing Judge in this case. Having regard to the seriousness of the offending and making due allowance for the offender's youth, his plea of guilty, and the other mitigating factors, it was not possible to arrive at a sentence as low as 2 years' imprisonment. That being the case, a suspended sentence under s 21A was not permissible. (p 493, line 3)

(2) With the suspended sentencing option not available, the question the sentencing Judge was required to address if, in all the circumstances of the case he was still moved to impose a non-custodial sentence, was whether ss 5(1) and 128B(2) necessitated imprisonment. Before he could avoid the imposition of a prison term the Judge would have had to be satisfied that, because of the special circumstances of the offence or of the offender, he should not impose a full-time custodial sentence. (p 493, line 10)

(3) The factors of the youth of the respondent, his own severe sexual abuse, the environment in which he was placed following his own trauma, and his progress toward and prospects of rehabilitation did not constitute special circumstances for the purposes of ss 5(1) and 128B(2) in this case. Whether taken in isolation or in conjunction with each other they were neither unusual or exceptional. While it is accepted that a combination of factors, including the youth of the offender and the desirability of rehabilitation for that particular offender, may at times amount to special circumstances, such a combination did not exist in this case. Even if there were special circumstances, the Court could not properly exercise its discretion under ss 5(1) and 128B(2) to depart from a non-custodial sentence in this case. The respondent's age and prospects of rehabilitation could not be viewed in isolation and the offending, especially the repeated rape of H, was too serious not to impose a sentence of imprisonment. It is a matter for Parliament whether that legislative direction requires review in the case of young sexual offenders. Therefore, ss 5(1) and 128B(2) do apply in this case. (p 495, line 17)

(4) There were extensive mitigating factors to reduce the term of imprisonment imposed. Foremost among those were the factors put forward as special [(1998) 15 CRNZ 481,483] circumstances: the youth of the respondent, the apparent extensive abuse which he was subjected to in his own formative years, and the prospect of rehabilitation if he continues to receive satisfactory treatment. The plea of guilty, although delayed, must also count for something. Some importance must also be placed on the harshness of prison to a person of the respondent's age who has committed sexual crimes on child victims. However, nothing less than a significant custodial sentence is required to recognise the impact on the victims and the need to protect the public and mark society's denunciation of such violent sexual offending. (p 500, line 1)

(5) Having regard to the age of the respondent, the appropriate sentence would be in the range of 4 to 5 years. However, to recognise the respondent's progress towards rehabilitation, a reduction should be allowed and therefore a sentence of 3½ years' imprisonment is appropriate. (p 500, line 24)

Observation, (1) Courts must be cautious before acting on a psychiatrist's or psychologist's expression of opinion as to the relative seriousness of abuse. Psychiatry and psychology are not exact sciences, and psychiatrists and psychologists cannot guarantee that an offender who has received counselling and treatment will not reoffend. At most, the risk can be assessed as being low, even where good progress has been made. That is the situation in this case. The rehabilitative option open to the Court is an option to promote rehabilitation which, if successful, will reduce the risk of reoffending. While the task of achieving the right balance between the competing interests of the offender and potential victims is not without difficulty, the risk that an offender who is otherwise making good progress will reoffend outside the more ordered environment in which he is receiving treatment requires deliberate consideration. (p 494, line 28)

(2) It is important that counselling and treatment services are available to the respondent in prison. If young offenders who have committed a violent sexual crime are to be given a custodial sentence in accordance with Parliament's intent as expressed in ss 5(1) and 128B(2), effective treatment is required in prison if they are not to emerge from custody hardened recidivist sex offenders with the consequence that other children or persons will be put at serious risk. (p 500, line 30)

Statutes and regulations referred to

Crimes Act 1961, s 128B(1), (2)

Criminal Justice Act 1985, ss 5(1), 21A

Cases referred to

R v Accused (CA265/88) [1989] 1 NZLR 643; (1989) 4 CRNZ 36 (CA)
R v C (CA332/95) unreported, 28 September 1995, CA332/95
R v Carmichael unreported, 23 March 1995, CA521/94
R v Donaldson (1997) 14 CRNZ 537 (CA)
R v Hotene (1988) 3 CRNZ 414 (CA)
R v Petersen [1994] 2 NZLR 533, also reported as R v Petersen; R v Parker; R v Brown (1994) 11 CRNZ 228 (CA)
R v Titoko unreported, 11 September 1996, CA144/96
R v W (CA271/96) (1996) 14 CRNZ 132 (CA)[(1998) 15 CRNZ 481,482]

Application

Application by Solicitor-General for leave to appeal against sentence.